PRENDERGAST v McLAUGHLIN

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 20 May 2009
• Neutral Citation: [2009] IEHC 250
• Date: 20 May 2009
• Court: High Court
• Docket Number: [2006 No. 3411P]

[2009] IEHC 250

THE HIGH COURT

[No. 3411 P/2006]

Prendergast v McLaughlin

IN THE MATTER OF THE ESTATE OF PATRICK DEMPSEY, LATE OF BALLINAMONA, CLARA IN THE COUNTY OF KILKENNY

BETWEEN

MICHAEL PRENDERGAST

PLAINTIFF

AND

NEIL MCLAUGHLIN

DEFENDANT

RSC O.25

CIVIL LIABILITY ACT 1961 S9

STATUTE OF LIMITATIONS (AMDT) ACT 1991

CIVIL LIABILITY ACT 1961 PART II

CIVIL LIABILITY ACT 1961 S8

CIVIL LIABILITY ACT 1961 S6

CIVIL LIABILITY ACT 1961 S9(2)(B)

CIVIL LIABILITY ACT 1961 S9(2)(A)

CIVIL LIABILITY ACT 1961 S9(2)

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

HOWARD v CMRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

MOYNIHAN v GREENSMYTH 1977 IR 55

STATUTE OF LIMITATIONS 1957 S11

STATUTE OF LIMITATIONS 1957 S11(9)(A)

STATUTE OF LIMITATIONS 1957 S45

SUCCESSION ACT 1965 S126

CORRIGAN v MARTIN UNREP FENNELLY 13.3.2006 (EX TEMPORE)

CIVIL LIABILITY ACT 1961 S8(1)

CIVIL LIABILITY ACT 1961 S9(1)

CIVIL LIABILITY ACT 1961 S8(2)

BASHAM (DECEASED), IN RE 1987 1 AER 405 1986 1 WLR 1498

MCCARRON v MCCARRON UNREP SUPREME 13.2.1997 1997/4/1414

REIDY v MCGREEVEY UNREP BARRON 19.3.1993 1993/9/2615

BANK OF IRELAND v O'KEEFFE 1987 IR 47 1986/5/28

PRACTICE AND PROCEDURE

Limitation of actions

Inheritance - Intestate estate - Deceased's promise - Plaintiff asserting promise of estate in return for assistance in working lands - Proceedings commenced outside statutory period - Whether claim statute barred - Whether claim subsisting cause of action - Whether claim based on breach of contract, quasi contract or equity - Corrigan v Martin (Unrep, Fennelly J, 13/3/2006) applied; DB v Minister for Health [2003] 3 IR 12, Howard v Commissioners of Public Work [1994] 1 IR 101, Moynihan v Greensmyth [1977] 1 IR 55, Basham v Basham [1987] 1 All ER 405, McCarron v McCarron (Unrep, Supreme Court, 13/2/1997) and Reidy v McGreevy (Unrep, Barron J, 19/3/1993) considered; Bank of Ireland v O'Keeffe (Unrep, Barron J, 3/12/1986) distinguished - Civil Liability Act 1961 (No 41), ss 6, 8, 9 - Statute of Limitations Act 1957 (No 6), ss 9, 11 and 45 - Succession Act 1965 (No 27), s 126 - Rules of the Superior Courts 1986 (SI 15/1986), O 25 - Claim declared to be statute barred (2006/3411P - O'Keeffe J - 20/5/2009) [2009] IEHC 250

Prendergast v McLaughlin

Facts: The plaintiff sought a declaration that he was entitled on the death of the deceased to a beneficial interest in the lands of the deceased pursuant to a promise made during the lifetime of the deceased. The issue arose as to whether the claim of the plaintiff was statute barred pursuant to the provisions of s.9 Civil Liability Act 1961, as amended and pursuant to the Statute of Limitations (Amendment) Act 1991. The defendant submitted that the cause of action of the plaintiff was a "subsisting" cause of action within the meaning of s. 8 of the Act of 1961 and that a literal construction of the phrase was adequate and that the deceased could not breach a promise post-mortem. The plaintiff submitted that he had relied on a promise to his detriment.

Held by O' Keefe J. that as the deceased died in 2003, the proceedings ought to have been issued by 2005, two years after the death of the deceased. As the proceedings did not issue until 2006, the plaintiffs claim, whether it arose in contract, quasi contract or in equity, was statute barred.

Reporter: E.F.

1 Mr. Justice O'Keeffe delivered on the 20th day of May, 2009

2 1. In these proceedings, the Plaintiff claims a declaration that he is entitled on the death of the late Patrick Dempsey, Deceased, formerly of Ballinamona, Clifden in the County of Kilkenny, to the entire beneficial interest of the lands comprised in the estate of the said Deceased at Ballinamona, Clara in the County of Kilkenny, pursuant to promise made to, and reliance by the Plaintiff thereon during the lifetime of the said Deceased that the interests in these lands would devolve to the Plaintiff after his death and further pursuant to consideration given by the Plaintiff.

3 2. On 21 ^st day of April, 2008, the High Court made an order pursuant to O. 25 of the Rules of the Superior Courts directing that the following point of law be determined as a preliminary issue prior to the substantive hearing of this action.

4 Whether the Plaintiff's claim is statute barred pursuant to the provisions contained in Part II and in particular Section 9 of the Civil Liability Act 1961, as amended, and pursuant to the provisions contained in the Statute of Limitations Act 1957, as amended, by the Statute of Limitations (Amendment) Act 1991.

5 3. The following facts are agreed by the Defendant and the Plaintiff for the purpose of determining the preliminary issue between the parties and strictly without prejudice to the Defence delivered herein. For the purpose of the substantive hearing, no admissions are being made on behalf of the Defendant herein.

6 (i) The Defendant is the personal representative of the late Patrick Dempsey, Deceased, formally of Ballinamona, Clara in the County of Kilkenny, who died on 28 ^th August, 2003 (hereinafter "the Deceased"). The Deceased died intestate and a Grant of Letters of Administration Intestate were taken within the name of the Defendant as a lawful nephew of the Deceased on 27 ^th February, 2006.

7 (ii) The Plaintiff is a farmer and resides at Clarabricken, Clifden, County Kilkenny.

8 (iii) John Dempsey was the late brother of the Deceased, and died on 11 ^th July, 2000 and made his last Will and Testament on 7 ^th April, 1997. The said, John Dempsey, bequeathed the farmlands hereinafter mentioned to the Deceased together with a small legacy of the Plaintiff in the sum of £2,000 (€2,539.48). A grant of probate was extracted by the Deceased in the estate of his brother, John Dempsey on 18 ^th December, 2000.

9 (iv) The Deceased and late John Dempsey were bachelors who lived together in the farmhouse and land situate at Ballinamona, Clara, County Kilkenny and contained in Folio 2516, Register of Freeholders, County Kilkenny.

10 (v) The farmlands situate at Ballinamona consisted of approximately 85 to 90 acres and were in the sole ownership of the late John Dempsey. The Deceased was the owner of a separate farm at Rathbourne, County Kilkenny and consisting of approximately 156 acres and contained in Folio 859, Register of Freeholders, County Kilkenny.

11 (vi) The Plaintiff was a neighbour of the Deceased.

12 (vii) The Plaintiff alleges and for the purpose of trying the preliminary issue, it is agreed that he assisted both the Deceased and the late John Dempsey in working and maintaining the farmlands at Ballinamona for a period in excess of 25 years prior to the date of the death of the Deceased and the late John Dempsey in working and maintaining the farmlands at Ballinamona for a period in excess of 25 years prior to the date of the death of the Deceased.

13 (viii) The Plaintiff alleges and it is agreed for the purpose of the preliminary issue, that the Plaintiff was repeatedly told by the late John Dempsey and the Deceased that the farmlands at Ballinamona would be left to him after both had died. The Plaintiff relied upon these repeated promises and assurances by both the late John Dempsey and the Deceased continued to provide assistance in the management and running of the farm at Ballinamona and thereby acted to his prejudice.

14 (ix) It is alleged and agreed for the purpose of the preliminary issue, that in or about the month of July 1998, that a meeting took place between the late Patrick Dempsey, the Deceased William Dempsey, also Deceased (being a brother of the said Patrick and John Dempsey and the Plaintiff. At the said meeting, John Dempsey stated he was leaving the lands in Ballinamona to the Plaintiff. It is alleged and agreed for the purpose of trying the preliminary issue that John Dempsey, Patrick Dempsey and William Dempsey agree to this arrangement and with this assurance the Plaintiff continued to provide assistance in the working of the farm at Ballinamona.

15 (x) It is agreed that the late John Dempsey died on 11 ^th July, 2000 and by his last Will and Testament dated 7 ^th April, 1997, demised and bequeathed the farmlands at Ballinamona to the late Patrick Dempsey together with a small legacy to the Plaintiff in the sum of €2, 539.48 (IR£ 2,000) after the death of the late John Dempsey, the Plaintiff continued to provide assistance on the farmlands at Ballinmona.

16 (xi) It is alleged and agreed for the purpose of trying the preliminary issue, that some 6 or 7 weeks before the death of the said Patrick Dempsey, Deceased, on 28 ^th August, 2003, the Deceased asked the Plaintiff to visit him. The Deceased informed the Plaintiff at the said meeting that he had given instructions to a solicitor, Mr. Martin Crotty, Solicitor of 45 Parliament Street, Kilkenny, to make a Will and that in the Will he was leaving the farm at Ballinamona to the Plaintiff. Thereafter, the Plaintiff continued to assist the Deceased with the management and maintenance of the farmlands at Ballinamona until his unexpected death on 28 ^th August, 2003.

17 (xii) It is agreed solely for the purpose of trying the preliminary issue that on or about July 2003, the Plaintiff instructed his solicitor, Martin Crotty, to make a draft Will, which said Will was never executed.

18 4. In Part II of the Civil Liability Act 1961 (hereinafter "the 1961 Act"), section 9 provides as follows:-

19 2 "(1) In this section 'the relevant period' means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.

20 (2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of the deceased person unless either-

21 (a) proceedings against him in respect of...